Papua New Guinea Law Reports - 1977
[1977] PNGLR 173
N101
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MELI HETI
Lae
Kearney J
15 June 1977
CRIMINAL LAW - Particular offences - Concealing birth of child - What is a “child” - Test of viability applied - Criminal Code s. 320.
INFANTS AND CHILDREN - Definition - “Child” - Concealing birth of child - Test of viability - Criminal Code s. 320.
WORDS AND PHRASES - “Child” - Concealing birth of child - Test of viability applied - Criminal Code s. 320.
Section 320 of the Criminal Code provides: “Any person who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, whether the child died before, at, or after, its birth, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for two years.
Held
A “child” for the purposes of s. 320 of the Criminal Code, must be such that, if in fact it died at or after birth, it had, at the time it died, capacity in the ordinary course for a continued existence independent of its mother; and if it died before birth, it must be such that, had it been born immediately prior to its death, and setting aside altogether the cause of that death, it also had that capacity.
R. v. Hewitt & Smith (1866) 4 F. & F. per Smith J., and R. v. Berriman (1854) 6 Cox C.C. 388, at p. 390 referred to.
One means of proving that the “child” was in fact viable is to show that the woman, at the material time, had been pregnant for 28 weeks.
Trial
This was the trial of an accused on a charge under s. 320 of the Code of concealing the birth of her newborn child.
Counsel
M. Maraleu, for the State.
B. Avery, for the accused.
Cur. adv. vult.
15 June 1977
KEARNEY J: The prisoner, having had the benefit of counsel’s advice, pleads guilty to a charge under s. 320 of the Code of concealing the birth of her newborn child.
The facts are clear enough. The prisoner is an unsophisticated village girl whose parents are dead. She lives in the village with her uncle and his family. She says that one of her uncle’s sons seduced her, and was the father of her child. When she discovered she was pregnant, she felt “shame” and concealed her condition. One day, she says, when she was about 5 months pregnant, she fell in the garden; and one or two nights later, on 26th February, after suffering some pain, she gave birth. She had gone outside the house, it was night, she was alone, the others sleeping. She has consistently claimed that the child when born lacked certain facial features, and was not moving. She believed it was dead. At the committal proceedings on 21st March, she said that when she saw that the “baby did not have any nose, I got scared, so I took the baby and threw it into the toilet”.
She told no-one about it. She was taken to hospital the next day, and later that day the body was discovered and buried. Several witnesses at the committal proceedings, who then saw the body confirmed her account that it was not completely formed.
The prisoner spent 2 weeks in hospital, was arrested a week later, and committed for trial, in custody, on 21st March.
The major reason for the existence of the offence in s. 320 of the Code, it appears to me, is to serve as a possible alternative verdict under s. 552, where the homicide of a newly-born infant is charged, but not established. However it appears increasingly to be charged as an offence in itself, and as I am not aware of any reported cases in this jurisdiction to serve as a guide, I make the following observations.
The offspring delivered must be proved to be a “child” and not “only a foetus, or the unformed subject of a premature discharge”. R. v. Hewitt and Smith[clxiv]1. It does not matter whether the child died before, at, or after its birth. In my opinion a child, for the purposes of s. 320, must be such that, if in fact it died at or after birth, it had, at the time it died, and setting aside altogether the cause of that death, a capacity in the ordinary course for a continued existence independent of its mother; and if it died before birth, it must be such that, had it been born immediately prior to its death, and setting aside altogether the cause of that death, it also had that capacity.
I agree, with respect, with the remarks of Erle J. when dealing with the corresponding offence in England:
“There is no law which compels a woman to proclaim her own lack of chastity, and if she had miscarried at a time when the foetus was but a few months old, and therefore could have had no chance of life, you could not convict her upon this charge.” R. v. Berriman[clxv]2.
This approach receives some support from Constitution s. 49, dealing with the individual’s right to privacy.
One means of proving that the child was in fact viable, is to show that the woman, at the material time, had been pregnant for 28 weeks. Below that period, it may properly be presumed not to have been viable.
Applying these principles to the evidence available in the present case, and bearing in mind the surrounding circumstances, I must say, with respect, that I do not think the prisoner should have been prosecuted at all for this or any other offence. She was entitled to the compassionate solicitude and concern of society, rather than to the rigour of the criminal law.
In all the circumstances, instead of imposing punishment under s. 320, I apply s. 19(f) of the Code, and order that the prisoner be discharged upon entering into a recognizance in the sum of Twenty five Kina (K25.00) to be of good behaviour for the next 6 months.
Accused to be discharged upon entering into a recognizance in the sum of K25 to be of good behaviour for 6 months.
Solicitor for the State: K. B. Egan, Public Prosecutor.
Solicitor for the accused: W. J. Andrew, Acting Public Solicitor.

[clxiv](1866) 4 F. & F., per Smith J.
[clxv](1854) 6 Cox C.C. 388, at p. 390.